Beltway Buzz, August 30, 2024

District Court postpones ‘Parole in Place.’ This week, the US District Court for the Eastern District of Texas upheld the fourteen-day processing of the US Department of Homeland Security’s (DHS) approval of requests for ” parole in place”. In so holding, the court did not “make final decisions about the success or failure” of the legal challenge to the program that had been filed by sixteen states and Republican governors. While the stay is still in place, “immigrants will still be able to apply for parole,” but the department will not grant a permit. The court also established an expedited comment schedule but noted that “good cause may exist to extend this administrative period sometimes until mid-October.” According to a notice issued by the US Citizenship and Immigration Services, during the postponement, the agency will “[c]continue to schedule biometric appointments and take biometrics at Application Support Centers (ASCs).”

DOL Tips Regulation Vacated. Late last week, the US Court of Appeals for the Fifth Circuit struck down the US Department of Labor’s (DOL) 2021 loan rule. The court struck down the rule because it “uses loan money in an illegal manner [Fair Labor Standards Act’s] text” and “is unreasonable and unhelpful because it draws a line for the use of discretionary credit that is impermissible and contrary to the legislative policy enacted by Congress.” The case is a good example of how The Supreme Court of the United States issued a recent order Loper Glory-that federal courts should not submit to agency interpretations of vague laws and instead should make their own best interpretations of the ambiguities -can affect regulatory policy making . Victoria L. Vish and Steven F. Pockrass have notes.

Federal Court Grants Time to Block H-2A Regulations. On August 26, 2024, the US District Court for the Southern District of Georgia blocked the DOL’s rule related to H-2A visa holders, which took effect on June 28, 2024 , and is intended to increase “protections for temporary agricultural workers” and strengthen “the Department’s ability to monitor program compliance and take necessary enforcement actions against program violators.” Specifically, the law prohibits employers from retaliating against or discriminating against employees who engage in “collective activities for the purpose of mutual aid or protection” or who refuse to attend an employer-sponsored meeting regarding such activities. It also provides Weingarten rights over covered employees.

The court ruled that the law violates the National Labor Relations Act (NLRA) because it provides collective bargaining rights to agricultural workers, who are expressly excluded from the NLRA’s definition of “employee.” ” The court wrote, “In this Final Rule, the DOL seeks to establish a rule by giving certain agricultural workers—H-2a workers and U.S. workers similarly situated—the right to purchase through Congress has not created that right. And in fact, the NLRA reflects Congressional intent to not make such a right.” The court order blocking the law is limited to seventeen states led by Republican governors who challenged the law. Since then, the DOL has proposed that the order apply only to the statutory provisions for workers and that the remaining provisions continue to apply.

NLRB Decision Challenges Resolution of Unfair Employment Practices Claims. In a decision issued late last week, the National Labor Relations Board (NLRB) abandoned its decades-old practice of allowing cases to be resolved by consent decree, in which an administrative law judge approves an agreement based on terms given by the opponent, but without permission. of the complaining party or the general counsel of the Board (although the order may be appealed and reviewed by the Board). The three Democratic Board members concluded that allowing cases to be resolved by consent decree is against the Board’s rules and regulations, “causes administrative problems and inefficiencies, has in- interfere with the legal authority of the General Counsel, and in particular, fail to implement the policies of the Act.” Republican Rep. Marvin Kaplan disagreed, writing:

Destroying the credibility of the Agency, on the one hand, asking for more resources from the American people, while on the other hand, changing the policies of the Board to divert those resources to unnecessary cases where the Defendant voluntarily to give permission. a reasonable solution or, even, a complete cure. Worse still, the misallocation of resources that is the inevitable result of my colleagues’ decision today unnecessarily reduces the amount of resources available for the Board to use to protect American workers.

Chair Lauren McFerran, in a majority, approved the use of consent orders in a Board hearing issued in 2016.

NLRB/DOL Assistance in Antitrust Investigations. On August 28, 2024, the general counsel of the NLRB, the DOL, the Federal Trade Commission (FTC), and the US Department of Justice (DOJ) Antitrust Division (ATR) announced a memorandum of understanding (MOU) “to strengthen the protection of workers and fair competition by cooperating in labor matters in unscrupulous merger investigations.” According to the invitation, the organizations commit to “working together to ensure that all relevant and relevant information and expertise can be used to facilitate the ability of Antitrust Agencies to assess the potential effects of mergers and acquisitions on labor markets .” This includes the NLRB and DOL providing “training to eligible employees from nonprofit organizations” and meeting with those organizations to provide “technical assistance, as appropriate, on labor law issues and employment in relation to integration analysis, including in labor market integration solutions. research. ” The Board has entered into similar MOUs with the FTC, the Occupational Safety and Health Administration, and the DOJ.

24th Amendment. On August 27, 1962, the United States Congress passed the 24th Amendment to the United States Constitution, banning poll taxes in federal elections. The late 19th and early 20th centuries saw an increase in the adoption of the poll tax, as former Confederate states sought to prevent Black Americans from voting and ensuring the government. of the Democratic Party without contradicting the 15th Amendment. In 1937, the Supreme Court, in Breedlove v. Suttlesunanimously supported the propriety of the poll tax. However, the issue continued for decades until Senator Spessard Holland (D-FL), who signed the 1956 “Southern Manifesto” condemning the Supreme Court’s decision . Brown v. Board of Educationintroduced an amendment in Congress in 1962. (Holland continued to oppose civil rights legislation, but was persuaded to end the poll tax because he considered it discriminatory against wealth and corruption.) On January 23, 1964, South Dakota became the last state. to ratify the amendment, and the 24th Amendment became part of the US Constitution. Arizona, Arkansas, Georgia, Louisiana, Oklahoma, South Carolina, and Wyoming have not ratified the 24th Amendment. The 24th Amendment does not apply to state and local elections, but to Harper v. Virginia Board of Elections (1966), the Supreme Court ruled that poll taxes are unconstitutional at all levels of government.